TYAGI, J.—Petitioner Ratanlal was convicted under sec. 4/9 of the Opium Act by the learned Sub-Divisional Magistrate, Begun and was awarded a sentence of 1-1/2 years rigorous imprisonment and a fine of Rs. 500/- ; in default of payment of fine to further undergo rigorous imprisonment for a period of four months. On appeal, the learned Sessions Judge, Partabgarh, by his judgment dated 22.12.1962 maintained the conviction of the petitioner, but reduced the sentence of imprisonment to three months and that of fine to Rs. 200/- and it was ordered that in default of payment of fine, petitioner shall undergo rigorous imprisonment for a month. It is against this judgment of the learned Sessions Judge that the present revision petition has been filed by the petitioner. When the revision petition of the petitioner came for admission before a Single Judge of this Court, it was ordered that a notice be issued to the petitioner why his sentence should not be enhanced. The notice for the enhancement of sentence was, therefore, issued and registered as D. B. Criminal Revision No. 276 of 1963. It is under these circumstances that these revision petitions have come before this Bench.

2. The prosecution story, briefly stated, is as follows:

On 21.7.1961, Kalian Khan, Constable was coming in a bus from Singoli to Begun. At village Turkari petitioner Ratanlal boarded the bus with a bedding and occupied a seat behind Kalian Khan, and he put his bedding near his seat. It is alleged that smell of opium was emitting out of the bedding. This created suspicion in the mind of Kalian Khan. At the Begun bus stop Kalian Khan made enquiries about the contents of the bedding from the petitioner and it is said that the petitioner admitted before him that he was carrying contraband opium in his bedding. Petitioner, was, thereupon brought along with the driver and conductor of the bus to the Police Station, Begun where a report (Ex. P. 4) was lodged by Kallah Khan. On a search being taken of the bedding, 4 seers and 1/2 chattak of opium was recovered from it. The Station House Officer took out of it 2-1/2 tolas as a sample and sealed the same before the motbirs and the sample was sent to the Public Analyst through the Superintendent of Police, Chittorgarh. From the report of the Public Analyst (Ex. P. 6), it was found that the sample contained 2.91 per cent of morphine. The accused-petitioner was, therefore, challaned in the court of the Sub-Divisional Magistrate, Begun who convicted and sentenced the accused-petitioner as aforesaid.

3. Mr. Dalpat Singh, appearing on behalf of the petitioner, has assailed the judgments of the two courts below on the following grounds:

(1) The prosecution has failed to establish the conscious possession of the accused, as the bedding was not proved to be that of the petitioner.

(2) The prosecution has miserably failed to prove that the article recovered from the bedding alleged to be that of the petitioner was opium because (a) it is not established that the sample examined by the Public Analyst was the same which was taken by the Station House Officer from the said bedding and (b) that the report was not put to the petitioner when he was examined under sec. 342 Criminal Procedure Code by the trial Magistrate. This piece of evidence cannot, therefore, be read against the petitioner.

(3) The report of the Public Analyst Ex. P. 6 does not mention the test applied by him to arrive at the conclusion that the sample contained morphine and, therefore, the report is very meagre and cryptic and cannot have any probative value.

4. As regards the first contention of the learned counsel, the fact that the petitioner boarded the bus with the bedding in which the alleged opium was recovered at the Police Station, Begun, is established beyond any manner of doubt by the prosecution by producing Abdul Sattar (P. W. 2), Kalian Khan (P. W. 3) and Chouthmal (P. W. 4). Both the courts below have placed reliance on their testimony. Learned counsel for the

Click Here to Read the rest of this document